Conviction under the NDPS Act requires strict adherence to evidence handling procedures; failure to demonstrate continuous chain of custody invalidates prosecution efforts.

JUDGMENT :

D.DASH, J.

1. The Appellant, by filing this Appeal, has assailed the judgment of conviction and order of sentence dated 29th September, 2023, passed by the learned 3rd Additional Sessions Judge-cum-Special Judge, Berhampur in Case No.2(a)C.C.19/2022(N), arising out of P.R No.30/2022-23 dated 09.04.2022 of Inspector of Excise, E.I & E. B. Unit-II (S.D.), Berhampur.

The Appellant (accused) thereunder has been convicted for commission of the offence under section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, ‘the N.D.P.S. Act’). Accordingly, he has been sentenced to undergo rigorous imprisonment for a period of ten (10) years and pay fine of Rs.1,00,000/- (Rupees One Lakh) in default to undergo rigorous imprisonment for one year.

2. The prosecution case, in short, is that on 09.04.2022 around 5 p.m., the Inspector of Excise attached to E.I. & E.B., Unit-2, S.D, Berhampur (P.W.4) received an information from reliable source regarding illegal transportation of Ganja at Pakudibandha Junction. He (P.W.4), having recorded the information, intimated the same to his superior authority i.e. Deputy Superintendent of Excise. On being directed, he (P.W.4) with his other staff proceed to the spot. It was around 6 p.m., they all reached at the spot and saw the accused carrying one Jari basta on his head was standing on the road side. P.W.4 then having detained the accused, gave his identity and ascertained the identity of the accused too. Since P.W.4 got the smell of Ganja, coming from that jari basta, he expressed his intention for carrying out the search. It is stated that the accused was told as to if he would be desiring to be searched in presence of a Gazette Officer. The accused while denying for the search in presence of the Gazetted Officer, gave his consent of being searched by P.W.4. So, the persons of the nearby place were called. After observing all the formalities, the jari basta being recovered from the possession of the accused, small amount of the contents of the same were taken. With the departmental experience and training, P.W.4 by observing the colour, complexion, texture and smell and by rubbing and burning, ascertained those contents inside the jari basta to be flowering and fruiting tops of cannabis (Ganja). Thereafter, the contents of the bag were weighed. The net weight came to be 22 kg excluding the jari basta. The jari basta was seized under seizure list and it was sealed by using personal brass seal of P.W.4 and was also sealed by papers under the signature of P.W.4. The brass seal was given in zima of ASI of Excise (P.W.2), who was a member of the raiding party. The copy of the seizure list was given to the accused and he thereafter was arrested and produced before the Special Judge, Berhampur along with the seized contraband kept inside the jari basta.

On the prayer of P.W.4, the two parts samples each weighing 50 grams from the jari basta were drawn and marked Ext.A1 and Ext.A2. One of those i.e. ‘A1’ was sent to Assistant Chemical Examiner (DECTL), Berhampur for chemical examination and the other part of the sample ‘A2’ with the jari basta containing the residue were kept in Court Malkhana as per the order of the Court. The factum of search, seizure and recovery as above were reported by P.W.4 to his superior authority. The chemical examination report being received, on completion of all such legal procedures, final prosecution report was submitted placing the accused to face the trial for commission of offence under section 20(b)(ii)(C) of the NDPS Act being in chemical possession of trans